This person will either be someone appointed by a lasting power of attorney (or an enduring power of attorney in cases where the appointment was made prior to October 2007), or a financial deputy appointed by the Court of Protection.

In managing the affairs of the person lacking capacity, the attorney or deputy may wish to make financial gifts on behalf of the person lacking capacity, for example on birthdays, weddings, christenings or at Christmas. Whilst such gifts appear reasonable, many attorneys and deputies simply are not aware that they have very limited power to make such gifts.

There are complex rules, limits and restrictions on gifts by attorneys and deputies so it is important to seek professional advice from lawyers who specialise in this type of work. The legal costs of successful applications in this regard are usually paid by the person lacking mental capacity.

Our lawyers’ recent experience includes:

Applying to the court for authority to make lifetime gifts for a mentally incapable person. In one case it was to discharge a mortgage for her sibling.

 

Applying to the court for authority to enter into a deed of variation for the mentally incapable person where she did not require the benefit from the estate as she had, herself, more than sufficient assets for all possible eventualities. This was agreed and saved about £90,000.00 of inheritance tax that would have otherwise had to be paid from the estate of the mentally incapable person (the ultimate beneficiaries were the same under both estates).


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